#### The People of the State of New York, Respondent, *v.*Augustine Arez, Appellant.

Supreme Court, Appellate Term, First Department,

September 14, 1970.

*724
      *Milton Adler*and *Lawrence Stern*for appellant. *Burton B. Roberts, District Attorney (Michael F. Youdovin*of counsel), for respondent.

*Fer Curiam.*

Although neither party has challenged the validity of the legislative mandate that the certification and sentence of a narcotics addict, after a jury trial in the Supreme Court, be deemed a judgment of the court in which the verdict of guilty was entered (Mental Hygiene Law, § 208, subd. 3), the dissent would have us hold that such provision is unconstitutional. It is contended that the attempt to ‘ ‘ deem ’ ’ an order of certification by a Supreme Court Judge to be “ a judgment of the court in which the plea or verdict was entered ” (i.e., the New York City Grim. Ct.) runs afoul of the constitutional limitation of subdivision d of section 8 of article VI of the New York State Constitution. That provision, in relevant part, authorizes the grant of jurisdiction to an Appellate Term of the Supreme Court *‘ ‘*to hear and determine appeals now or hereafter authorized by law to be taken to the supreme court or to the appellate division *other than appeals from the supreme court*”. (Emphasis supplied.) It is argued that for this court to determine whether error was committed by a Supreme Court Justice presiding at the certification hearing would constitute “an inadmissible review by us of the rulings of a Judge of co-ordinate jurisdiction. ’ ’

While any court may refuse, on its own motion, to proceed with a cause when its lack of jurisdiction is apparent *(Shea*v. *Export S. S. Corp.,*253 N. Y. 17), the exercise of the power to declare a *725legislative act unconstitutional is a grave responsibility. In conformity with the traditional policy of the courts to construe statutes in such a manner as to uphold their constitutionality, it is well established that a statute must be presumed to be constitutional unless its repugnancy to the Constitution clearly appears and every rational and reasonable presumption must first be indulged in favor of the statute.

In the opinion of the majority, one *11*rational and reasonable presumption ” is that the drafters of the constitutional language which troubles the dissent, i.e., that the Appellate Term shall have jurisdiction to hear and determine appeals ‘ ‘ other than appeals from the supreme court ’ ’, intended that language to mean “other than appeals from actions *originating*in the supreme court.” (Compare the language of subdivision [a] of OPLR 5701, “ An appeal may be taken to the appellate division as of right in an action, *originating*in the supreme court ”.) (Emphasis added.) Of course, the instant action is not one originating in the Supreme Court. For the sake of convenience and orderly procedure, the Legislature directed that the hearing on addiction be transferred to a court physically capable of conducting a jury trial; the action, however, originates and remains in the Criminal Court. This procedure, whereby there is a limited transfer of a matter to a court better equipped to try an evidentiary question — with the ultimate determination remaining one of the originating court — is hardly novel in our practice (see, e.g., CPLR 7804, subd. [h]).

The contention that every Justice of the Supreme Court (a court of original general jurisdiction) shares *co-ordinate*jurisdiction with this appellate tribunal is a highly debatable one. Even if that contention were valid, however, the practice of Supreme Court Justices sitting in review of rulings of fellow Supreme Court Justices is one which necessarily occurs with some frequency, without noticeable damage to the fabric of our judicial system — for example, upon proceedings for the vacatur of provisional remedies previously granted, upon habeas corpus proceedings, upon certain bail proceedings, upon some applications for certificates of reasonable doubt, and even upon the modification of relief previously granted in orders to show cause.

Problems of comity and judicial sensibilities aside, there does not appear to be any demonstrable prejudice to the defendant by virtue of the questioned procedure. The defendant still retains the right of appeal, as of right, to an intermediate appellate tribunal with leave to apply for a further appeal to the Court of Appeals.

The judgment of conviction should be affirmed.

*726Mabkowitz, J.

(dissenting). In my judgment, we may not constitutionally review the order of the Supreme Court, Bronx County, dated October 17, 1969, certifying defendant to the care and custody of the narcotics commission (N. Y. Const., art. VI, § 8, subd. d).

Subdivision d of section 8 of article VI reads: *“*d. If so directed by the appellate division of the supreme court establishing an appellate term, an appellate term shall have jurisdiction to hear and determine appeals now or hereafter authorized by law to be taken to the supreme court or to the appellate division *other than appeals from the supreme court,*a surrogate’s court, the family court or appeals in criminal cases involving felonies prosecuted by indictment.” (Emphasis supplied.)

If section 208 of the Mental Hygiene Law, as amended by chapter 192 of the Laws of 1969, is read to give us such jurisdiction, to that extent, in my view, it is unconstitutional.

The genesis of the amendment is pertinent. In *People*v. *Fuller*(24 N Y 2d 292, 305) the Court of Appeals held that a narcotics commitment following a criminal finding of guilt “ does not differ from purely civil commitment proceedings in nature, purpose and effect, and the right to jury must obtain ”.

At the end of his opinion, Keating, J. said for the court *(supra,*p. 309): “ Since there has been a reversal to assure the defendants jury trials on the addiction hearings and since such jury trials are not available in New York City Criminal Court, the proceedings should be remitted to that court with directions that the *hearings be transferred*to the Supreme Court for trials before juries there to be selected.” (Emphasis supplied.)

Consonant with this direction of the Court of Appeals, subdivision 2 of section 208 of the Mental Hygiene Law was amended to provide that if a defendant elects to contest the issue of addiction and elects a jury trial: *‘ ‘*If the court be one not empowered to conduct a jury trial, the matter *shall be transferred*to the county court or supreme court of the county for trial”. (Emphasis supplied.)

Under subdivision 3 of section 208, as amended, if the defendant is found to be an addict ‘1 *the court wherein such finding is made*shall certify or sentence the defendant ” as in the section mandated. If found not to be an addict, *“*the action *shall be returned*to the court of conviction for sentencing ’ ’. Subdivision 5 provides that “ *certification*to the care and custody of the commission pursuant to * * * this section *shall be deemed a judgment of*conviction.” (Emphasis supplied.)

*727Section 208 does not talk of appeals. The sentence causing the problem reads (subd. 3): *“*Such certification or sentence shall be deemed to be a judgment of the court in which the plea or verdict of guilty was entered.”

Since the Supreme Court certification is the judgment of conviction, this sentence runs afoul of the constitutional limitation quoted at the beginning of this memorandum: (See, also, Appellate Term Bules, rule 1; 22 NYCBB 640.1; *Katz*v. *Waneta Realty Co.,*191 App. Div. 509; *Dickson*v. *Manhattan Ry. Co.,*45 Misc. 572; *Land Brokerage Co.*v. *Hamilton,*153 N. Y. S. 952.)

For us to determine whether error was committed by the Supreme Court Justice in effect constitutes an inadmissible review by us of the rulings of a Judge of co-ordinate jurisdiction. Indeed, it is possible that one of the Judges of this Appellate Term will be assigned in a case of this character to try the issue of addiction. In such an event, we would be reviewing the determination of one of our own Judges.

The appeal should be transferred to the Appellate Division (N. Y. Const., art. VI, § 5, subd. b; cf. *Paramount Pictures Theatres Corp.*v. *Royster Drive-In Theatres,*18 A D 2d 1082).

I therefore dissent and vote to respectfully transfer this appeal to the Appellate Division.'

Stkeit, J. P., and Quinn, J., concur in *Per Curiam*opinion; Markowitz, J., dissents in opinion.

Judgment of conviction affirmed.